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EEOC issues proposed rule on wellness programs and GINA

The Equal Employment Opportunity Commission (EEOC) has issued a proposed rule amending prior regulations under the Genetic Information Nondiscrimination Act of 2008 (GINA) to address incentives in workplace wellness programs. As we previously discussed, the EEOC issued a proposed rule on the application of the Americans with Disabilities Act to employer-sponsored wellness programs earlier this year. The new proposal tackles whether employers can offer incentives for an employee’s spouse to participate in a wellness program, particularly where the program requires the spouse to take a health risk assessment that seeks information about the spouse’s health status.

Background

GINA generally prohibits employers from using genetic information to make any employment decisions. Historically, the EEOC has taken the position that providing a financial incentive in return for medical information about an employee’s spouse violates GINA. In response to questions about how employers could offer a wellness program with incentives for spouses, the EEOC explained that an employer would have to provide a completely separate incentive for the spouse, which creates a tax problem in that the incentive would have to be taxed to the employee.

Proposed Rule

The proposed rule would permit employers to provide limited financial incentives (including a reward or penalty) to employees whose spouses provide information about their health status in a health risk assessment. There are several requirements in order for an employer to take advantage of this proposed rule. First, the spouse must be a participant in the employer’s group health plan. The program must be voluntary and reasonably designed to promote health and prevent disease. A program that collects information on a questionnaire without any follow-up or advice is not reasonably designed to promote health or prevent disease, according to the proposed rule. The spouse must also provide prior written authorization showing that participation is knowing and voluntary. The authorization form must include a description of the confidentiality protections and restrictions on disclosure of the information.

Additionally, any incentive must not exceed 30 percent of the total cost of coverage for the plan in which the employee and any dependents are enrolled. The 30 percent limit applies to the spouse’s reward/penalty as well as any other reward/penalty to the employee. Moreover, the incentive must be apportioned so that any incentive provided solely for the employee’s participation is limited to 30 percent of the cost of employee-only coverage, and any spousal incentive is limited to 30 percent of the total cost of coverage less 30 percent of the cost of employee-only coverage.

Inducements are not permitted in return for a spouse providing information about his or her genetics – the proposed rule permits only information about health status. The proposed rule also prohibits employers from providing incentives in exchange for information about an employee’s children (both biological and non-biological). Finally, the proposed rule does not amend the prohibition against the use of genetic information in making employment decisions. If an employer uses information gathered from a spouse to make an employment decision, the employer would still violate GINA.

The proposed rule is an expansion of other recent guidance issued by the EEOC, as well as the Departments of Labor, Treasury, and Health and Human Services. The proposed rule therefore comes as a welcome clarification to the EEOC’s prior statements regarding wellness incentives for spouses.

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